The Queen v Keith Edward Wright

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY s.139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/00

THE QUEEN

KEITH EDWARD WRIGHT

Hearing:	16 August 2000
Coram:	Gault J Robertson J Salmon J
Appearances:	S P France for Crown R M Hesketh for Respondent
Judgment:	17 August 2000

JUDGMENT OF THE COURT DELIVERED BY SALMON J

In these proceedings the Solicitor-General applies pursuant to s.379A(1)(d) of the Crimes Act 1961 for leave to appeal against an order made in the District Court at Auckland declining to admit the evidence of two witnesses at the trial of the respondent on charges of indecent assault in relation to two complainants. The two witnesses and the two complainants are three stepdaughters and a daughter of the respondent. The question is one of the admissibility of similar fact evidence.
The current charges concern allegations of touching by a daughter and a stepdaughter. In the case of the daughter R, what is alleged is touching about the breasts, lower tummy, back and bottom over a period of about 15 months starting when R was 15 years of age. This touching is alleged to have taken place in the TV room and in the complainant’s bedroom. In the case of the stepdaughter, T, the complaint is of one occasion when she was 16 and woke to feel a hand on her vagina over the top of her clothing. She says it was the respondent who committed this indecent assault on her. Both complainants moved to a sleep-out with a door which could be locked.
About 10 years ago the respondent pleaded guilty to, and was convicted of indecent assault, on two stepdaughters, H and TU. In the case of H the touching started when she was about 12 years old and went on for two years, until she left home. It started in the bedroom when the respondent would come into the room at night-time, pull the bed covers back and then touch H’s breasts, stomach and thighs. After a while that extended to kissing those areas and to touching during the day as well. On a few occasions the respondent also touched her vagina. On one occasion when her mother was away, he took her into the bedroom, undressed her and started rubbing his penis next to her vagina.
In the case of TU the complaint was of touching breasts and vagina at night-time while she was in bed. This was both on top of her clothes and underneath her clothing. After some time the touching occurred in the day-time as well. Again this went on for about two years and ceased when TU was about 15 years old.
The Crown wishes to call this evidence to support the credibility of the present complainants and submits that there is an underlying unity in relation to the offences which means that each witness can legitimately boost the other’s credibility. It will be a matter for the trial Judge to determine whether each of the present complainants’ evidence is admissible against the other. That matter is not before us.
The District Court Judge declined the application. He recognised the probative effect of the evidence, but concluded that its illegitimately prejudicial effect outweighed the probative value. He said:
While the evidence of H and TU may bolster the credibility of R and TC the support it provides is largely the support which comes from a consideration of propensity.
Despite the extensive analysis by the District Court Judge of the evidence the Crown submits that he did not sufficiently recognise the compelling pattern that emerged.
The compelling pattern which the Crown submits exists is the indecent touching of early teenage daughters and stepdaughters living in the family home with the respondent. As Crown counsel says:
Put bluntly the respondent has exhibited a pattern of liking to feel his daughters’ bodies.
The Crown relies on the reasoning of this Court in R v M [1999] 1 NZLR 315, 320:
There can be circumstances where evidence of past conduct can strengthen an inference that the accused has repeated that conduct but there must be some significant additional feature which lifts the evidence above showing only bad character or disposition to offend generally. That will be where some special characteristic or pattern emerges from the evidence, or where there is some underlying unity between the separate events. In those circumstances evidence of the presence of the characteristic or pattern on separate occasions may increase the likelihood that they are linked.
For the respondent Mr Hesketh supports the District Court Judge’s decision and submits that the underlying unity referred to by the Crown must have a quality which raises it above sameness. There has to exist significant additional features or a feature. He submitted that there is no such feature in this case.
The District Court Judge listed the similarities which he found and then said this:
There is a similarity in terms of the location in which the offending and alleged offending is said to have taken place, that is predominantly in bedrooms occupied by the victims and alleged victims in the family home. This may not, however, add a great deal more than the similarity with respect to paternal role as that similarity is likely to bring with it contact within a family home. More specifically, in each case there was in fact and allegedly usage of bedrooms occupied by the victims and alleged victims. Again, however, that may not add a great deal to the similarity arising out of Mr Wright’s paternal relationship.
There is some similarity in terms of the time at which the offending and alleged offending is said to have taken place which time was the hours of darkness. However with respect to H and TU the offending is alleged to have extended into the day.
With respect to the nature of the alleged offending caution must be exercised to ensure that the fact that what occurred or is alleged to have occurred amounts to indecent assault does not itself create sufficient similarity.
The Judge went on to record that what must be weighed is the probative value against illegitimate prejudicial effect arising in particular from considerations of propensity. He acknowledged that the evidence does have probative effect, but that the illegitimately prejudicial effect outweighs the probative value. He reserved the question of evidence being tendered as evidence in rebuttal should an argument be raised on behalf of the respondent that there has been collusion on the part of the complainants.
A decision in matters of this nature involves the exercise of a discretion by the District Court Judge. The onus is on the appellant to satisfy the Court that the decision under appeal is clearly wrong.
Mr France submitted that the Judge had effectively retreated to a striking similarity approach to similar facts issues and that he had undervalued the circumstances of intrafamilial abuse to the extent where his conclusion could be said to be plainly wrong.
There is no doubt that in this case there is a link between the evidence of the proposed witnesses and the complainants which is probative and admissible. The evidence discloses a pattern of targeting early teenage daughters and stepdaughters and the actions alleged bear a general similarity. The familial relationship and the pattern of approach and behaviour do constitute significant features.
Each case depends upon its own facts and an analysis of those facts in the light of the legal principles involved. We have concluded in this case that the Judge’s assessment that the probative value was outweighed by illegitimate prejudice was clearly wrong. This is a case where the evidence proposed does legitimately strengthen the Crown case.
We accept the argument advanced by Mr France. There is here, if it is accepted by the jury, evidence of three members of the respondent’s household, complaining of similar repetitive touching by the person having paternal responsibility for them, at similar stages of their development and in similar circumstances. The nature of the alleged touching, in each case stopping short of penetration, is notable. This goes well beyond evidence of a propensity in different circumstances in the past to offend, or of bad character. Looked at in the round it is evidence of a pattern of parental conduct which meets the requirements for admissibility and that is not detracted from merely because there were some differences in the alleged conduct with the witnesses.
We grant leave to appeal and allow the appeal.

Solicitors

M. J. Behrens QC, Palmerston North for Appellant
Crown Law Office, Wellington for Respondent

[2000] NZCA 167

17 August 2000